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Who holds the Ace? The card game that changed the face of dishonesty

The Supreme Court this week redefined the 35 year old test for dishonesty, which will inevitably impact upon healthcare professionals facing dishonesty allegations.

In Ivey v Genting Casinos, Ivey, a professional gambler, used a specialist technique called “edge sorting” to win £7.7m which the casino declined to pay on the basis that the technique constituted cheating. Ivey brought an action against the club claiming that his technique was legitimate gamesmanship.

Upholding the High Court and Court of Appeal’s judgments and dismissing Ivey’s appeal, the Supreme Court held that his actions were positive steps to fix the deck and therefore amounted to cheating, regardless of what he believed. More importantly, the Court went further and said that the two stage test as defined in R v Ghosh no longer correctly represents the law and that directions based on it should no longer be given.

The second stage of the test required consideration of whether the defendant would have realised that ordinary honest people would regard their behaviour as dishonest. However the Court was concerned that this approach meant that “the less the defendant’s standards conform to what society in general expects, the less likely he is to be held criminally responsible for his behaviour” and that this “allows the accused to escape liability where he has made a mistake of fact as to the contemporary standards of honesty.”

The Court therefore adopted a single standard saying that “there can be no logical or principled basis for the meaning of dishonesty to differ according to whether it arises in a civil action or a criminal prosecution.”

The test for dishonesty is now therefore as set out in Royal Brunei Airlines v Tan and Barlow Clowes that “the tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by applying the (objective) standards of ordinary people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.”

The message emanating from the judgment is that the Ghosh test is no longer good law. For healthcare professionals accused of dishonesty, this judgement could have potentially significant consequences. Tribunals will no longer have to assess the practitioner’s state of mind when considering dishonesty and as a result, proving dishonesty allegations may well turn out to be a less onerous task. The judgment certainly marks a radical departure from the approach which has been consistently used for over a third of a century.